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Namah v Poole [2016] PGNC 203; N6397 (2 September 2016)

N6397

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (HR) No. 8 OF 2015


BETWEEN


THE HONOURABLE BELDEN NAMAH MP,
MEMBER FOR VANIMO GREEN OPEN
Plaintiff


AND
A TRIBUNAL COMPRISING
THE HONOURABLE JUSTICE GOODWIN POOLE,
SENIOR MAGISTRATE MARK SELEFKARIU AND
SENIOR MAGISTRATE ERNEST WILMOT
First Defendants


AND
PONDROS KALUWIN, PUBLIC PROSECUTOR
Second Defendant


AND
OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
Third Defendant


AND
THE HONOURABLE CHIEF SIR SALAMO INJIA, KT, GCL,
CHIEF JUSTICE OF PAPUA NEW GUINEA
Fourth Defendant


Waigani: Cannings J.
2016:18, 30 August & 2 September


HUMAN RIGHTS – application for enforcement – appointment and proceedings of a leadership tribunal – whether the decision to appoint the tribunal involved a denial of natural justice – whether conduct of a leadership tribunal gave rise to a reasonable apprehension of bias on the part of the tribunal.


The plaintiff, a member of the National Parliament, commenced proceedings by originating summons in the National Court, seeking a permanent injunction to restrain the further convening of a leadership tribunal, which had been appointed by the Chief Justice to inquire into and determine allegations of misconduct in office against him. The plaintiff also sought various declarations, including that the tribunal had breached his human rights by: denying him the full protection of the law under Section 37(1) of the Constitution, acting harshly and oppressively and committing other proscribed acts contrary to Section 41 of the Constitution, and denying him natural justice contrary to Section 59 of the Constitution. To support his claim for relief, the plaintiff argued two fundamental propositions: (1) that the appointment of the tribunal by the Chief Justice gave rise to a reasonable apprehension of bias on the part of the Chief Justice, due to (a) the Chief Justice being the victim of one of the allegations of misconduct in office that was before the tribunal and therefore a potential witness, and (b) there being long-running antagonism between the Chief Justice and the plaintiff ; and (2) that the conduct of the members of the leadership tribunal gave rise to a reasonable apprehension of bias on the part of the tribunal, in that: (a) the tribunal had in the early, pre-trial stages of the proceedings, given instructions to the same law firm and same counsel who represented the Public Prosecutor, (b) the tribunal had taken an active and aggressive role in the proceedings, from the date of commencement through to the trial, as well as during a Supreme Court Reference that emanated from these proceedings, and (c) the tribunal had conducted its proceedings in a way that suggested it was not unbiased in regard to the plaintiff. At the trial of the further amended originating summons, the tribunal was first defendant, the Public Prosecutor was second defendant, the Ombudsman Commission was third defendant and the Chief Justice was fourth defendant. Each of the defendants was separately represented. The first and second defendants (and to a lesser extent, the third defendant) took an active role in the trial, by strongly resisting the relief sought by the plaintiff, and in particular by the first defendant, the tribunal, arguing that the proceedings should be summarily dismissed for being frivolous and vexatious and an abuse of process by the plaintiff. The fourth defendant took a passive role, by not making any submissions and indicating that he would submit to whatever order the Court made.


Held:


(1) The application by the tribunal for summary dismissal of the proceedings, for being frivolous and vexatious and an abuse of process, was dismissed, as: the application was not properly before the Court, and was made late, and was without substance as the proceedings had been commenced and maintained as an application for enforcement of human rights and the further amended originating summons was drafted in a way that adequately allowed the cause of action of breach of human rights to be prosecuted fairly and properly.

(2) The appointment of the tribunal by the Chief Justice did not give rise to a reasonable apprehension of bias on the part of the Chief Justice, as (a) the fact that the Chief Justice was a victim of one of the allegations of misconduct in office that was before the tribunal and therefore a potential witness did not mean that it was unlawful or improper for the Chief Justice to appoint the tribunal or that the Chief Justice was in a conflict of interests, and (b) there was no worthwhile evidence of any long-running antagonism between the Chief Justice and the victim.

(3) The conduct of the members of the leadership tribunal during the course of the litigation did give rise to a reasonable apprehension of bias on their part. A tribunal whose jurisdiction is called into question by proceedings in the National Could should normally pay no active role in the proceedings. Here, the role of the tribunal was so aggressive a reasonable person would suspect that the tribunal was no longer impartial and that if the plaintiff were required to go back before that tribunal he would not be guaranteed a fair hearing. The tribunal had let itself be unduly antagonised by the plaintiff’s conduct and in doing so breached the principles of natural justice and shed itself of the cloak and aura of impartiality it was required to maintain at all times.

(4) A permanent injunction to restrain the tribunal members from proceeding in their inquiry was granted.

(5) Due to the active role of the first and second defendants in opposing the relief sought, the first and second defendants were ordered to pay the plaintiff’s costs of the proceedings.

Cases cited:


The following cases are cited in the judgment:


Belden Norman Namah MP v Rimbink Pato MP, National Executive Council & The State (2014) SC1304
R v Australian Broadcasting Tribunal, Ex parte Hardiman[1980] HCA 13; (1980) 144 CLR 13
SC Ref No 2 of 2016, Re Interpretation of Section 169(4)(c) of the Constitution (2016) SC1516
Tascone and Australian Community Pharmacy Authority and Katsavos and Katsavos and Kouzas (Parties Joined) [2011] AATA 724


ORIGINATING SUMMONS


This was an application for enforcement of human rights in which the plaintiff sought a permanent injunction to restrain a leadership tribunal from further convening, and related declarations.


Counsel:


G J Sheppard &B G Purvey, for the Plaintiff
R Bradshaw, for the First Defendant
L P Kandi, for the Second Defendant
M Efi, for the Third Defendant
M T Griffiths & G Lakati, for the Fourth Defendant


02nd September, 2016


  1. CANNINGS J: The plaintiff, the Honourable Belden Namah MP, the Member for Vanimo Green Open, applies by originating summons for enforcement of his human rights. He argues that his rights have been breached in regard to the appointment and the proceedings of a leadership tribunal that has been appointed to inquire into and determine allegations of misconduct in office against him. A trial has been conducted of the ‘further amended originating summons’, filed 20 November 2015.
  2. The primary remedy the plaintiff seeks is a permanent injunction to restrain the tribunal from further convening. He also seeks various declarations regarding breach of his human rights, including that the tribunal has breached his human rights by: denying him the full protection of the law under Section 37(1) of the Constitution, acting harshly and oppressively and committing other proscribed acts contrary to Section 41 of the Constitution, and denying him natural justice contrary to Section 59 of the Constitution.
  3. To support his claim for relief, the plaintiff argues two fundamental propositions:

(1) the appointment of the tribunal by the Chief Justice gave rise to a reasonable apprehension of bias on the part of the Chief Justice;


(2) the conduct of the members of the leadership tribunal gave rise to a reasonable apprehension of bias on the part of the tribunal.


DEFENDANTS


  1. There are four defendants:

Each of the defendants was separately represented at the trial. The first and second defendants (and to a lesser extent, the third defendant) took an active role in the trial, by strongly resisting the relief sought by the plaintiff, and in particular by the first defendant, the tribunal, arguing that the proceedings should be summarily dismissed. The fourth defendant took a passive role, by not making any submissions and indicating that he would submit to whatever order the Court made.


PRELIMINARY ARGUMENT


  1. I will first address a preliminary issue raised by Mr Bradshaw for the tribunal, supported by Mr Kandi, for the Public Prosecutor. They submit that the proceedings should be summarily dismissed for being frivolous and vexatious and an abuse of process by the plaintiff.

I dismiss this argument, for three reasons. First, it is an application that should have been made by notice of motion, supported by affidavit. It is not properly before the Court. Secondly, it was made very late. Thirdly, it is without substance as the proceedings have been commenced and maintained as an application for enforcement of human rights. The further amended originating summons has been drafted in a way that adequately allows the cause of action of breach of human rights to be prosecuted fairly and properly.


  1. I now address the two fundamental propositions argued by the plaintiff. If one or both of the propositions is upheld, the question of remedies will be addressed.

PROPOSITION 1: APPOINTMENT OF THE TRIBUNAL BY THE CHIEF JUSTICE GAVE RISE TO A REASONABLE APPREHENSION OF BIAS ON THE PART OF THE CHIEF JUSTICE


  1. It is argued that the appointment of the tribunal by the Chief Justice gave rise to a reasonable apprehension of bias, for two reasons:

(a) the Chief Justice is the victim of one of the allegations of misconduct in office that is before the tribunal and therefore a potential witness, and


(b) there is evidence of long-running antagonism between the Chief Justice and the plaintiff.


(a) The ‘victim and witness’ argument

Issue (a) found its way to the Supreme Court via a Section 18(2) reference made by Acting Justice Koeget. The question put to the Supreme Court was whether the Chief Justice, in the circumstances of the case, was “unable to act” to appoint the members of the tribunal, in the sense that the “term “unable to act” appears in Section 169(4)(c) of the Constitution.


  1. It was agreed as a fact that the Chief Justice was an alleged victim of one of the allegations of misconduct in office and a potential witness in the leadership tribunal proceedings and that he appointed the members of the tribunal. The Chief Justice is at the centre of one of 15 categories of misconduct in office, in that it is alleged that the plaintiff in 2012 “stormed” a courtroom in which the Chief Justice was presiding and threatened physical violence. The argument was made by the plaintiff, to the Supreme Court, that the Chief Justice was put in a position of a conflict of interests, such that the Constitution required that his Honour not appoint this tribunal. And the same argument is now before the Court in this trial.
  2. The Supreme Court held that the term “unable to act” in Section 169(4) is not restricted to inability due to physical or mental infirmity. If the Chief Justice is in a conflict of interests he will be “unable to act”. However, the Court concluded that the fact that the Chief Justice was the alleged victim of one of the allegations of misconduct in office and a potential witness did not put him in a conflict of interests when he appointed the members of the tribunal. Nor did it give rise to a reasonable apprehension of bias. There was no other reason the Chief Justice could not appoint the members of the tribunal. The answer to the question – was the Chief Justice unable to act? – was no (SC Ref No 2 of 2016, Re Interpretation of Section 169(4)(c) of the Constitution (2016) SC1516).
  3. The plaintiff has given evidence in the present trial about precisely what happened in the alleged storming incident. He concedes that there was such an incident. He explains why he acted as he did. However, that evidence does not alter the essential facts on which SC Ref No 2 of 2016 was decided. On the exact issue now before me, the Supreme Court (of which I was a member, together with David J and Polume-Kiele J) held:

We are not persuaded that the Chief Justice’s involvement in the subject matter of the tribunal’s proceedings would give rise to an apprehension, in the mind of a reasonable person, of bias against the plaintiff by the Chief Justice or by the members of the tribunal. A reasonable person, with knowledge of the background of the matter and an appreciation of how courts and tribunals operate in Papua New Guinea, would, we suggest, understand and appreciate, that:


The further details of the facts do not persuade me that I ought to reach a different conclusion to that reached by the Supreme Court.


(b) The ‘antagonism’ argument
  1. The plaintiff gave evidence of what he regards as long-running antagonism between himself and the Chief Justice. He gave details of:
  2. I am not persuaded by that evidence. I cannot make any finding that in fact the Chief Justice has anything like a grudge against the plaintiff or an axe to grind or any grievance against him. I am also not convinced that it can be said that a reasonable person with knowledge of the facts would perceive any antagonism of the Chief Justice towards the plaintiff. It is something that the plaintiff suspects. It is something that he believes. But the plaintiff’s view of things is not the pertinent consideration. It is the beliefs and perceptions of a reasonable person with knowledge of the facts that is the key. The test is not satisfied.

I find that no long-running antagonism exists between the Chief Justice and the plaintiff and no reasonable apprehension of bias on the part of the Chief Justice has arisen.


  1. The first fundamental proposition of the plaintiff is rejected.

PROPOSITION 2: CONDUCT OF THE MEMBERS OF THE LEADERSHIP TRIBUNAL GAVE RISE TO A REASONABLE APPREHENSION OF BIAS ON THE PART OF THE TRIBUNAL


  1. It is argued that a reasonable apprehension of bias on the part of the tribunal has arisen, because:

(a) the tribunal in the early, pre-trial, stages of the proceedings, gave instructions to the same law firm (M S Wagambie Lawyers) and same counsel (Mr Kandi) who represented the Public Prosecutor;


(b) the tribunal took an active and aggressive role in the proceedings, from the date of commencement through to the trial, as well as during the Supreme Court Reference that emanated from these proceedings; and


(c) the tribunal conducted its proceedings in a way that suggested it was not unbiased in regard to the plaintiff.


  1. I uphold these arguments, in particular (b). The plaintiff’s counsel, Mr Sheppard, warned counsel for the tribunal, on numerous occasions, before and during the trial, that the approach being taken by the tribunal was irregular and wrong and improper, and that if its approach – active opposition to the plaintiff, accusing him of time-wasting, abuse of process, engaging in vexatious litigation for ulterior motives – remained the same, he would vigorously argue that the tribunal was biased against his client and that for that reason alone, it should be restrained.
  2. Mr Sheppard’s warnings were expressed in open court, transparently, and they are on the record of the Court. Mr Sheppard’s approach was reasonable. The tribunal cannot say that it has been caught off-guard by this argument now forming a fundamental part of the plaintiff’s case. It was not part of his case when the proceedings were commenced. But it is now. The warnings have not been heeded.
  3. The tribunal has not altered its approach. Mr Bradshaw has argued in his submissions, for the tribunal, that the proceedings must be dismissed because the plaintiff is abusing the processes of the court; thus continuing an attitude of outright hostility to the plaintiff.
  4. And so it has come to pass. I uphold the submissions of Mr Sheppard that the aggressive approach and attitude of the tribunal has become so entrenched, that it has shed the cloak and aura of impartiality that it is required to maintain at all times – even when, and especially when, its jurisdiction, or even the integrity of its members, is challenged by a leader.
  5. I agree also with Mr Sheppard that the fourth defendant, the Chief Justice, has exemplified the approach that should have been taken by the members of the tribunal. The Chief Justice has been represented throughout the trial and the pre-trial hearings by counsel. On each occasion, counsel for the Chief Justice has indicated that no submissions will be made. His Honour is on the record as being a neutral party, a party who will submit to whatever order the Court makes.
  6. The risks that a quasi-judicial body, such as a leadership tribunal, takes when it seeks to become actively involved in litigation concerning its decisions or its jurisdiction, were spelt out by the High Court of Australia in R v Australian Broadcasting Tribunal, Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13. In that case, Mr Hardiman applied to the High Court for orders of mandamus and prohibition directed to the Broadcasting Tribunal. The relief was granted as the High Court decided that the Broadcasting Tribunal had failed to discharge its statutory responsibility in that, by its rulings, it had precluded itself from inquiring into all relevant matters. The High Court was very concerned that the Broadcasting Tribunal had become so actively involved in the case that it was difficult for it to be seen to be impartial in subsequent proceedings before the Broadcasting Tribunal, in which Mr Hardiman would be involved. The Court said:

There is one final matter. Mr Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors’ case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.


  1. The principles set out in the above passage have been put into practice in Australia in numerous instances, so much so that the cautionary approach which the High Court was suggesting should be taken, has come to be known as ‘the Hardiman approach’. This was pointed out by Deputy President Forgie of the Administrative Appeal Tribunal, in Tascone and Australian Community Pharmacy Authority and Katsavos and Katsavos and Kouzas (Parties Joined) [2011] AATA 724. There is no equivalent case in PNG. Mr Bradshaw submitted that the decision in Hardiman is not binding on the National Court. Of course it is not binding, it is persuasive authority only. However, it is strongly persuasive, in my view, because the High Court was simply interpreting and applying the principles of natural justice, which form part of our underlying law and which are implanted in Section 59 of the Constitution, which states:

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.


(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.


  1. It can be seen that in the present case, the Chief Justice has taken the Hardiman approach, while the tribunal has taken the opposite approach. The tribunal’s approach was imprudent and unnecessary. A reasonable person with knowledge of the approach taken by the tribunal in the present litigation, would reasonably suspect that the tribunal is biased against the plaintiff and that if allegations of misconduct in office were to return to the same tribunal, it would not inquire into and determinate the allegations impartially.
  2. The tribunal has let itself be unduly antagonised by the plaintiff. As a result, it breached the principles of natural justice and shed itself of the cloak and aura of impartiality it is required to maintain at all times. I uphold the plaintiff’s second fundamental proposition.

REMEDIES


  1. As the second of the plaintiff’s fundamental propositions has been upheld, the question of what remedies, if any, should be granted by the Court now arises. The starting point in determining that question is to clarify the relief being sought by the plaintiff. By the further amended originating summons, the plaintiff sought ten distinct remedies, identified in paragraphs 1(a) to (j) of the summons. The relief sought in paragraphs (a), (b), (c) and (j) has been abandoned. The relief sought in paragraphs (d), (e), (f), (g), (h) and (i) is being pursued. Those paragraphs state:
    1. In the alternative, an interlocutory or alternatively permanent injunctions restraining the first defendants from convening, in the circumstances that the purported appointment of the first defendants by the fourth defendant pursuant to Section 27(7)(e) of the Organic Law on the Duties and Responsibilities of Leadership is and was ultra vires and unconstitutional.
    2. In the further alternative an interlocutory or alternatively permanent injunctions restraining the first defendants from convening in circumstances where a reasonable apprehension of bias arises by reason of:
      • (a) in this ongoing litigation, involving the first defendants, providing instructions to private counsel to act on behalf of the first defendants, actively contest the plaintiff’s application and to seek orders including costs against him; and
      • (b) the first defendants’ apparent communication with the Public Prosecutor without the knowledge and the consent of the plaintiff to instruct private counsel to act jointly on behalf of the first defendants and the second defendant as if their interests were the same.
    3. A declaration that the facts, matters and circumstances referred to in paragraph 1(a)(i)–(v) hereof, and in particular the failure of the first defendants to discharge their duty under Section 18(2) of the Constitution, breached the plaintiff’s right under Section 37 of the Constitution to the full protection of the law.
    4. In the alternative, a declaration that the facts, matters and circumstances referred to in paragraph 1(a)(i)–(v), and in particular the failure of the first defendants to discharge their duty under Section 18(2) of the Constitution, amount to “proscribed acts” under Section 41 of the Constitution, in that such actions:-
      1. are harsh and oppressive, or
      2. are not warranted by or are disproportionate to, the requirements of the particular circumstances or of the particular case, or
      3. are otherwise not, in the particular circumstances, reasonably justified in a democratic society having a proper regard for the rights and dignity of mankind, and
      4. are consequently unlawful acts, and are unconstitutional, invalid and ineffective.
    5. In the further alternative a declaration that the purported appointment of the first defendants by the fourth defendant on 9 October 2015 pursuant to Section 27(7)(e) of the Organic Law on the Duties and Responsibilities of Leadershipis and was unconstitutional, invalid and ineffectual.
    6. A declaration that the fourth defendant acted unconstitutionally in the purported discharge of his duties under Section 27(7) of the Organic Law on the Duties and Responsibilities of Leadership by appointing the first defendants as an “appropriate tribunal” to inquire into allegations of misconduct in office against the plaintiff, in circumstances where the fourth defendant had a prior involvement in some of the events relating to the inquiry of the First Defendants:-
      1. contrary to Section 27(1) of the Constitution, and
      2. against the principles of natural justice pursuant to section 59 of the Constitution.
  2. I will not grant the relief sought in paragraphs (d), (f), (g), (h) and (i). Paragraphs (d), (h) and (i) are predicated on the Court upholding the plaintiff’s first proposition, that the appointment of the tribunal by the Chief Justice was ultra vires, unconstitutional, invalid, ineffectual, contrary to Section 27(1) of the Constitution and/or contrary to the principles of natural justice. That proposition has been rejected so there is no basis on which the Court could logically grant the relief sought in paragraphs (d), (h) and (i).

Paragraphs (f) and (g) are predicated on acceptance of the proposition that the tribunal failed in its duty under Section 18(2) of the Constitution to refer constitutional questions to the Supreme Court. That proposition has not been advanced at the trial. It was a live issue in the pre-trial period of these proceedings. It was effectively resolved by the decision of the National Court to refer a constitutional question to the Supreme Court and by the determination of the constitutional question by the Supreme Court in SC Ref No 2 of 2016, Re Interpretation of Section 169(4)(c) of the Constitution (2016) SC1516. It is now a dead issue. There is no basis on which the Court could logically grant the relief sought in paragraphs (f) and (g).


  1. That leaves paragraph (e). I will in general terms grant the injunction sought. The argument to justify a permanent injunction to restrain the tribunal from further convening has been made out by upholding the plaintiff’s second fundamental proposition. It is in the interests of justice to grant such an injunction as the tribunal, as it is presently constituted, has, with respect, compromised the real and apparent impartiality that it is required to bring to bear on the matter before it.
  2. This is not a permanent injunction to restrain the appointment of another, differently constituted, tribunal. It is not a bar to the Public Prosecutor making another request to appoint a tribunal. It does not prevent the Chief Justice appointing another tribunal. It does not protect the plaintiff from prosecution before a differently constituted tribunal. It puts the plaintiff back in the position he was in prior to the appointment of the tribunal. He will need to wait for the Public Prosecutor to decide whether he still wishes to bring the proceedings.
  3. It is not necessary to make any other substantive order. As for costs, the proceedings have been opposed vigorously by the tribunal and by the Public Prosecutor (including seeking costs against the plaintiff), not vigorously by the Ombudsman Commission, and not opposed by the Chief Justice. It is appropriate that the tribunal and the Public Prosecutor pay the plaintiff’s costs.

ORDER


  1. It is ordered, in relation to the further amended originating summons filed 20 November 2015, that:

Ordered accordingly.


_____________________________________________________________
Young & Williams Lawyers: Lawyers for the Plaintiff
Bradshaw Lawyers : Lawyers for the 1st Defendants
MS Wagambie Lawyers : Lawyers for the 2nd Defendant
Counsel to the Ombudsman Commission: Lawyer for the 3rd Defendant
Ashurst Lawyers : Lawyers for the 4th Defendant

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